Andhra HC (Pre-Telangana)
Koganti Venkata Suryanarayana vs The State Of A.P. Rep., By Its Prl. ... on 28 February, 2018
Bench: Ramesh Ranganathan, Gudiseva Shyam Prasad
HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN AND THE HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD
Writ Petition (PIL) No.244 of 2017
28.02.2018
Koganti Venkata Suryanarayana .Petitioner
The State of A.P. rep., by its Prl. Secretary, Municipal Administration and Urban Development Department, Secretariat, Velag
Counsel for Petitioner: Sri V. Srinivasa Rao
Counsel for respondents: Sri C.V. Mohan Reddy, Learned Senior
Counsel appearing on behalf of the 7th
respondent
GP for Municipal Administration and
Urban Development (AP)
Sri G. Seshadri (SC for MPP ZPP)
D Ramesh
GP for Panchayat Raj Rural
Development (AP)
Sri V. Raghu
<GIST:
>HEAD NOTE:
? Citations:
1) AIR 1998 Karnataka 300
2) 1979 (2) KLJ 327
3) AIR 1954 SC 728
4) AIR 2001 Madras 324
5) 1994 (1) (Mad) LW 470
6) AIR 1995 Madras 179
7) 1996 (2) Mad LW 35 : 1996 AIHC 4494
8) 1972 (1) Madras LJ 4 = AIR 1972 Madras 212
9) 1981 (2) Mad LJ 336
10) AIR 1987 Mad 183
11) 2014 (1) CTC 561
12) 2006 SCC OnLine Bom 796 = (2007) 1 AIR BOM R 619
13) (2001) 4 SCC 734
14) (1976) 1 SCC 671
15) 2009 (6) ALD 590
16) (1993) 2 SCC 703
17) 2010(2) ALD 789 = 2010(3) ALT 252
THE HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN
AND
THE HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD
Writ Petition (PIL) No.244 of 2017
ORDER:{Per the Honble the Acting Chief Justice Ramesh Ranganathan} This Writ Petition is filed in Public Interest seeking a mandamus to declare the action of respondents 1 to 6 in not initiating action for removing the illegal and unauthorized construction of compound walls and gates by the 7th respondent, closing public access to the roads in the layout in R.S. No.498/2(P), 498/3(P), 499/1 & 2, 510/3A, 511(P), 518/1B & 2, 502/1&2 dated 31.01.2004 of Gollapudi village, Vijayawada Rural Mandal, Krishna District, surrendered to the 5th respondent-gram panchayat through registered gift deed dated 08.04.2011, and in not removing the illegal construction made by the 7th respondent in the lay out open space, as illegal, arbitrary and unconstitutional. A consequential direction is sought to respondents 1 to 6 to remove the constructed walls and gates which had resulted in public access to the layout roads being closed, and to remove the illegal constructions made by the 7th respondent in the layout open spaces.
Facts, to the limited extent necessary, are that the 7th respondent society purchased Ac.29.4 cts in different survey numbers of Gollapudi village, Vijayawada Rural Mandal, Krishna District, and applied to the then Vijayawada Guntur Tenali and Mangalagiri Urban Development Authority for grant of permission to construct a row shopping complex, consisting of ground and first floor in the said land, and permission was accorded vide proceedings dated 31.01.2004. This complex was named as the Mahatma Gandhi Wholesale Commercial Complex, with each shop of a plinth area of 934 square feet in the plot area of 149.33 square yards. An extent of Ac.2.90 cts was earmarked for open spaces, and Ac.2.40 cts for parking. The 7th respondent gifted all the layouts roads and open places, vide registered gift deed No.1555 of 2011 dated 06.04.2011, to the 5th respondent Gollapudi Grampanchayat for public use. Consequently, all roads and open places in the 7th respondent shopping complex stood vested in the 5th respondent as its absolute custodian, and was meant for public use of ingress and egress. Thereafter the 7th respondent constructed compound walls and gates closing all public roads, restricting access of the general public to the layout roads. In addition a building was constructed, in one of the open public places, for commercial use.
The petitioner, an elected member of Ward No.13 of Gollapudi Grampanchayat, claims to be actively involved in undertaking development activities in the subject village, and to be in the forefront in putting forth public grievances before the authorities concerned. He also claims not to have any personal interest in the matter, and that the Writ Petition is filed only in the interest of the people of Gollapudi village, the general public, and people residing in surrounding colonies of Mahatma Gandhi Wholesale Commercial Complex. The petitioner alleges that a second floor was illegally constructed over the permitted ground and first floor; the general public was facing inconvenience because of closure of these roads; despite higher officials having directed the 5th respondent several times to remove the walls and gates, they have not removed them so far; and removal of the walls and gates erected by the 7th respondent, closing public access to the layout roads vested in the 5th respondent, was necessary to prevent misuse of public roads and open spaces in the layout.
While alleging that the 7th respondent and its members had constructed the shops in the complex in gross violation of the sanctioned plan, and they had not left the parking space as shown in the layout, the petitioner submits that the lay out was granted with 40 feet and 30 feet wide main roads, and 20 feet wide internal roads between the shops; however the shops were constructed, on the boundary of the layout, without maintaining the open space earmarked in the sanctioned layout; the subject sanctioned layout is surrounded by three colonies which had developed long ago; after construction of shops, the 7th respondent had closed the lay out roads with brick walls and, in some places, they had erected gates restricting the ingress and egress of the general public; they had thereby preventing usage of said road by the residents of the surrounding colonies; even the gates were being maintained under lock and key by the management of the 7th respondent; there are two bus stops, and two Nationalised bank branches within the shopping complex area itself; hundreds of people, living in the surrounding residential colonies, have their accounts in these bank branches; RTC buses ply through the shopping complex area to the housing board colonies; the State Government took up construction of a flyover near Indrakeeladri temple; consequently traffic was completely blocked on the National Highway, and diverted through the newly developed by-pass road to reach Vijayawada town; residents, living on one side of the commercial complex of the 7th respondent, can reach the by-pass road only through the Commercial Complex area, otherwise they have to take a round about of around 4 to 7 kilometers to reach the same destination; and the public at large are suffering in view of the compound walls and gates constructed by the 7th respondent closing/preventing public access to the public roads within the layout.
According to the petitioner, the Gollapudi area falls within the limits of the 4th respondent which has absolute authority in dealing with illegal and unauthorized construction under the APCRDA Act; the 4th respondent had initiated action for removal of the unauthorized construction in several areas; after noticing the illegal construction of a second floor, by several members of the 7th respondent, the 4th respondent had issued orders vide proceedings dated 19.05.2017, under Section 116(1) of the APCRDA Act, directing further construction to be stopped; a copy of the said letter was marked to the 5th respondent, and the District Panchayat Officer, Krishna District; however, no further action was initiated thereafter resulting in completion of the illegal constructions and its being put to use; on information being sought, under the Right to Information Act, the 5th respondent- gram panchayat, vide letter dated 24.12.2015, stated that the roads in the Mahatma Gandhi Commercial Complex, Gollapudi were public access roads belonging to Gollapudi Grampanchayat, and action would be taken for removal of the constructed walls which had resulted in closing access to these roads to the general public; however the 6th respondent, in collusion with the 7th respondent, had not initiated any action for its removal; the general body of the 5th respondent had passed a resolution on 09.12.2016 directing the 6th respondent to initiate action for removal of the compound walls and gates which restricted access to the roads; and, though the petitioner had submitted several representations thereafter, no action was taken.
The petitioner further stated that Sri A.V. Krishna Rao had filed an application before the 4th respondent seeking permission; officials of the 4th respondent had inspected the 7th respondent complex, and had observed that the 7th respondent had constructed compound walls across all the 50 feet roads which had already been gifted to the 5th respondent; Sri A.V. Krishna Rao and others had filed W.P. No.18639 of 2016 and W.P. No.34358 of 2016 seeking a direction to remove the wall; both the Writ Petitions are pending adjudication; mere pendency of the Writ Petitions is not a bar to implement the law; there are no orders in force preventing action being taken to remove the walls and the gates constructed by the 7th respondent; in their counter-affidavit, filed in W.P. No.18639 of 2016 and W.P. No.34358 of 2016, respondents 4 and 5 had admitted that the 7th respondent had closed the public roads by constructing walls and gates, but they had not initiated any action to remove the same so far; the 7th respondent had closed all lay out roads either by constructing walls or putting up gates, keeping them under lock and key, and preventing the general public from accessing the said roads for their use; all the roads and open places vest in the local authority, and are meant for general public use; more over the layout was not sanctioned as a gated community, and not even a compound wall was permitted around the complex; the 7th respondent had constructed a compound wall all around the shops illegally without obtaining permission from the authorities; the 6th respondent, (the executive officer of the 5th respondent) had colluded with the 7th respondent; because of his inaction, the public at large were suffering inconvenience, more so because the National Highway was closed for construction of a flyover at Indrakiladri temple.
In the counter-affidavit, filed on behalf of the 4th respondent, it is stated by the Director, Development Promotion Wing of AP CRDA, Vijayawada that they had granted permission to the 7th respondent for construction of 489 row shops consisting of G+1 upper floor in an extent of Ac.29.0475 cts in different survey numbers; the total plot area was 489 x 149.33 square yards or Ac. 15.09 cts; the total open space was Ac.2.905 cts; the parking area was Ac. 2.40 cts; the lay out had 60 feet roads, 40 feet roads and 30 feet wide roads; the approach road is the 200 feet wide Vijayawada by-pass road, and the 100 feet wide ZDP road; his office had informed the 7th respondent, vide letter dated 16.05.2010, to hand over the roads and open spaces to Gollapudi Gram Panchayat; accordingly, the 7th respondent had handed over the roads and open spaces to the Gollapudi Gram panchayat vide registered gift deed No.1555/2011 and 1019/2011 which were under the possession of the panchayat; the same was confirmed by the Panchayat Secretary, Gollapudi on 24.12.2015; the 7th respondent had requested the 4th respondent not to grant any permission to Gollapudi Grampanchayat or anybody to lay roads, or to interfere with the Mahatma Gandhi whole sale commercial complex in any manner, since the District Collector, Municipal Commissioner and the Commissioner of Police had directed the wholesale commercial dealers to shift their wholesale business to the outskirts of Vijayawada town, as their earlier location was causing traffic problems; the 7th respondent claimed that, in obedience to their directions, they had obtained sanction, vide layout dated 31.01.2004, to construct a complex at their own cost; they had laid roads on the ground, and had developed other infrastructure works around the complex at the exclusive cost and expense of the members of the commercial complex; the 4th respondent has not granted permission for construction of a compound wall all around the commercial complex of the 7th respondent; they had also not granted any permission to construct a compound wall obstructing entry to the general public to the gram panchayat road; they had informed the Panchayat Secretary on 15.02.2016 to remove the compound wall which was obstructing entry to the site from the existing 40 feet wide gram panchayat road; the 4th respondent had requested the District Panchayat Officer, vide letter dated 04.07.2016, to direct the Panchayat Secretary to take immediate action for removal of the compound wall (which was obstructing public access to the roads), as also the structures constructed by the society in the lay out public open space, to avoid further legal complications; they had issued a show cause notice, under Section 115(1) of the APCRDA Act, 2014, which was served on 19.05.2017 upon 18 shop members; these shop owners were given 7 days time to show cause why the unauthorized constructions should not be removed; Sri A.V. Krishna Rao had submitted plans for construction of a commercial complex consisting of Cellar for parking+G+4 upper floors; the site is earmarked for Commercial use as per the Gollapudi Zonal Development plan; the proposal was also to secure access from the three 40 feet wide roads on the Northern side, and the 33 feet wide road on the eastern side of the site; these three 40 feet wide roads belong to the Gollapudi Gram panchayat, consequent upon the 7th respondent having gifted it vide registered gift deed dated 08.04.2011; it was found that these three roads are closed at the end of the site of Sri A.V. Krishna Rao by constructing a compound wall; the Panchayat Secretary had issued a certificate, certifying that the roads were public roads belonging to the Gollapudi Gram panchayat, and the Gram panchayat would take up the responsibility of removal/demolishing the wall within its limits which hindered public access; and the present proposal, for construction of a commercial complex, would be considered only after removal of the compound wall by the Gram panchayat which was obstructing entry, to the site under reference, from the existing 40 feet wide access road.
In the counter-affidavit filed by the 7th respondent, the bonafides of the petitioner is put in issue. It is stated that the 7th respondent, a society registered under the Societies Act, has around Rs.60 crores turnover every day; they are paying more than Rs.14 lakhs as House tax and professional tax; the petitioner was the brother-in-law of Sri A.V. Krishna Rao - the first petitioner in W.P. No.18639 of 2016 and W.P. No.547 of 2017; the petitioner had high handedly got demolished the compound wall of the society on the intervening night of 20/21.03.2016 for which a complaint was given to the Bhavanipuram police station which was registered as Cr. No.160 of 2016 on 21.03.2016; and the demolished part of the compound wall was reconstructed.
With regards the compound wall, the 7th respondent would submit that there was a gap of 3 feet to 5 feet between the shops and the compound wall; the compound wall was constructed even before construction of the complex leaving one feet of the societys land outside the compound wall; the compound wall was constructed in 2002 even prior to approval being granted for the lay out; they have not closed any road having connectivity either with the panchayat or the municipal road or the National High way; the only gate on the southern side, and one of the two gates on the northern side, were closed as per the advice of the police, for keeping trained men at the gates for security reasons; even for these two gates, the 7th respondent had constructed a gate within the gate for access of pedestrians and two wheelers; residents living on one side of the commercial complex, whose roads are connected to the roads of the commercial complex, are passing through these roads without any obstruction; the allegation, that public access was prevented, is incorrect; a 750 square feet structure, which was used as their office at the time of construction of the buildings in the lay out, is located in the place gifted to 5th respondent adjacent to the southern side gate of the lay out; instead of demolishing the structure, the 7th respondent is using it for the purpose of a canteen, as mentioned in the gift deed executed by them in favour of the 5th respondent gram panchayat; taxes are being paid on the subject premises, and the rent received therefrom is being used for maintenance of public utilities like providing public water facility etc; and they have also constructed a bus shelter near the canteen.
According to the 7th respondent, Sri A.V. Krishna Rao, who was the owner of the land on the southern side of the complex, and who has access to his land through a 33 feet wide road on the Northern side of his land, also has access through Mahender Nagar and Ambedhkar Nagar; the internal roads, adjacent to the plots of Sri A.V. Krishna Rao and others, are only 20 feet wide roads; the remaining 20 feet area, adjacent to these 20 feet roads, is earmarked for parking; these 20 feet wide internal road are not viable for traffic; there is only one 40 feet road in the lay out which is connected, on the eastern end, to the 100 feet Venkateswara foundry road, and is connected on the western end to the 40 feet road in the Venkateswara colony; there is no other 40 feet road in the lay out; the petitioner is the brother-in-law of Sri A.V. Krishna Rao, and the relief sought in this Writ Petition is similar to that of W.P. No.18639 of 2016; and they were not preventing the general public from accessing the layout roads wherever the lay out roads are connected to the Municipal panchayat roads or the National Highway.
In his affidavit, filed in reply to the counter-affidavit filed by the 7th respondent, the petitioner submits that the 7th respondent did not obtain permission for construction of a compound wall; the sanctioned layout does not disclose any compound wall to be in existence before the date of application seeking layout sanction; the allegation that the compound wall was constructed in the year 2002 is false; existence of shops in the layout does not authorise the 7th respondent to close the layout roads with walls and gates; as per the sanctioned layout, all roads are open to the adjacent localities and are public roads; in every city there are several localities, with thousands of shops and business establishments, in which roads, meant for public use, are open to one and all; the 7th respondent had also not maintained the required setbacks as per the sanctioned layout; the assertion that there was a gap of three to five feet between the shops and the compound wall was false; the 7th respondent has admitted that they had erected three gates closing the roads; as per the sanctioned plan there are 20 roads connecting places outside the layout; of these 20 roads, the 7th respondent erected six gates closing public access; the remaining 14 roads were completely closed on a wall being constructed thereupon; the plan, enclosed to the affidavit, discloses the areas where the roads have been closed either with walls or with gates; the allegation that the gates were closed as per the advice of the police, for keeping the trained men at the gates for security reasons, is false; the advice of the police has been invented for the first time in the counter-affidavit; in the earlier Writ Petition filed by the 7th respondent, there is no mention of any advise having been given to them by the police; in any event, the police officials have no power to advice, and direct closure of public roads preventing access thereto to the general public; the 7th respondent admits having leased out the premises for running a hotel; running of a hotel is not a public purpose; in public places, earmarked in the layout, greenery has to be developed, and no construction can be made thereupon; the CRDA has filed a detailed counter-affidavit in W.P.No.547 of 2017 stating that they did not grant permission to the 7th respondent to construct a compound wall all around the commercial complex, nor had they granted permission, for construction of a compound wall, obstructing entry to the general public; inspite of several directions by the CRDA, and by the third respondent, the 6th respondent, acting in collusion with the 7th respondent, had not initiated any action; it is the duty of respondents 5 and 6 to comply with the directions of respondents 3 and 4; though show-cause notices were issued by the 4th respondent, no action was taken; out of the 20 roads which connect the 7th respondent layout to localities outside, gates were erected at six places and are being kept under lock and key; the other 14 roads have been completely closed with compound walls being constructed thereupon; the 7th respondent, having gifted these roads and open places to the 5th respondent, cannot be heard to contend that they would not open the roads for public use; public roads and foot paths are not supposed to be obstructed by anybody in any form; respondents 2 to 6 had failed in their duty to implement the law, and had turned a blind eye towards the issue; along with the writ petition, they had enclosed photographs of the compound wall with a huge iron-gate within which there is a small gate through which two wheelers and pedestrians can pass, and not four wheelers or bigger transport vehicles; and all around the 7th respondent complex, other than those places where gates have been erected, the entire area is closed by compound walls.
With regards the allegation that the Writ Petition as filed is not in public interest, the petitioner states that he was born and brought up in Gollapudi village; there are more than 100 families, of his close relatives, living in the said village; the 7th respondent complex was near his house; he was the Ward Member of the locality wherein the 7th respondent shopping complex was located; being a public representative of the locality, it was his duty to attend to the specific grievance of members of the locality, and grievances of the general public living in the entire area; he had mentioned, in his writ affidavit, regarding the Writ Petitions filed by Sri A.V. Krishna Rao on the one hand, and the 7th respondent on the other; he had also enclosed the Writ affidavits and counter- affidavits filed by the respondents; he has not suppressed any facts; in the Writ Petition filed by Sri A.V. Krishna Rao, removal of only one wall, which restricts access to his site from the layout road, was sought; in the present Writ Petition, filed in public interest, the petitioner prays for opening of all the layout roads to public access; with regards Crime No.160 of 2016, filed by the 7th respondent, the complaint itself alleges that the Vice-President of the Grampanchayat had got the compound wall demolished, and the petitioner was standing near the same; he had forgotten about the police having obtained his signature, and did not inform the same to his counsel when the writ affidavit was drafted; this was purely a mistake for which he tendered apology; there was no personal animosity or dispute between him and any of the members of the 7th respondent; and if the layout roads are made open to the general public, residents of all the surrounding colonies would be benefited on securing free access to these roads.
It is not in dispute that the 7th respondent-Society was accorded sanction by the then Vijayawada-Guntur-Tenali and Mangalagiri Urban Development Authority, vide proceedings dated 31.12.2014, for a lay out and to construct a row shopping complex thereon. It is also not in dispute that the 7th respondent had, as required by law, gifted all the subject lay out roads and open spaces in favour of the 5th respondent gram panchayat, by registered gift deed No.1555 of 2011 dated 06.05.2011 and No.1019 of 2011, for public use; the sanctioned lay out consisted of 20 roads connecting places outside the lay out; over these 20 lay out roads, the 7th respondent had constructed compound walls over 14 of them, and had erected gates over the remaining six, preventing/restricting public access thereto; and they had also used the open spaces, in the sanctioned lay out, for construction of their office which was later converted to a canteen and leased out to a third party. The contention, urged on behalf of the petitioner by Sri V. Srinivasa Rao, Learned Counsel, is that, since the subject 20 roads within the aforesaid sanctioned lay out belong to the 5th respondent-Gram Panchayat, and are meant for public use, the 7th respondent could neither have constructed compound walls over 14 of such roads, nor could they have erected gates over the remaining six.
Bearing in mind the fact that all roads and public spaces in the subject lay out were gifted by the 7th respondent in favour of the 5th respondent gram panchayat vide gift deed No.1555 of 2011 dated 08.04.2011 and 1019 of 2011, let us take note of the relevant provisions of the A.P. Panchayat Raj Act, 1994, and the A.P. Capital Region Development Authority Act, 2014. Section 53 of the Andhra Pradesh Panchayat Raj Act, 1994, (hereinafter called the 1994 Act) relates to vesting of public roads in gram panchayats and, under sub-section (1) thereof, all public roads in any village, other than National Highways, State Highways and roads vesting in Zilla Parishad or Mandal Parishad, shall vest in the gram panchayat together with all pavements, stones and other materials thereof, all works, materials and other things provided therefor, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the gram panchayat fund or otherwise, in along side or under such roads, and all works, materials and things appertaining thereto. Under the proviso thereto, the gram panchayat shall take steps to remove encroachments on, and prevent un-authorised use of, any road other than a National Highway passing through the gram panchayat. Section 98 of the 1994 Act relates to removal of encroachment and, under sub- section (1) thereof, the executive authority may, by notice, require the owner or occupier of any building to remove any encroachment or obstruction in or over any public road vested in such gram panchayat. Section 101 relates to prohibition against making holes and causing obstruction in public roads and, under sub- section (1) thereof, no person shall make a hole or cause any obstruction in any public road vested in a gram panchayat except with the previous permission of the executive authority, and subject to such conditions as the executive authority may impose. Section 101(3) stipulates that, if any person contravenes the provisions of Section 101, the executive authority shall fill up the hole or remove the obstruction and may recover the cost of so doing from such person.
Section 2(5)(a) of the A.P. Capital Region Development Authority Act, 2014 (for short the 2014 Act) defines building to include any structure or erection, or a part of a structure or erection, which is intended to be used for residential, industrial, commercial or any other purposes, whether in actual use or not. Section 114(1) stipulates that any person who undertakes or carries out development of any land or building, or institutes or changes the use of any land or building, in contravention of the master plan or infrastructure plan or area development plan or any plan sanctioned under the Act (a) without permission as required under the Act or (d) in-contravention of any permission which has been duly modified, shall be punishable with imprisonment for a term which may extend to three years or with a fine equivalent to twenty percent. Section 115(1) of the 2014 Act stipulates that, where any construction of a building has been commenced or is being carried on or has been completed as indicated in Section 114(1), the Commissioner may, subject to the provisions of Section 115, serve on the owner a provisional order requiring him to demolish such unauthorised construction, within the specified period, to bring such construction of the building or work in conformity with the provisions of the Act or as per the sanctioned development permission or Rules or bye-laws made thereunder.
In terms of Section 53(1) of the 1994 Act all public roads, within the territorial limits of a Gram Panchayat, are vested in it, and, in terms of Sections 98 and 101 thereof, the Gram Panchayat is obligated to remove encroachments, and prevent unauthorised use of any of the roads which belong to it. Neither was the 7th respondent accorded permission, either by the 5th respondent- Gram Panchayat or by the 4th respondent, to construct compound walls and erect gates, nor do the 1994 Act and the 2014 Act provide for any such permission to be granted. Construction of compound wall over 14 roads in the lay out, and erection of gates in the remaining six, all of which are meant to connect areas outside the lay out, has resulted in prohibition/restriction of the use of these roads, which belong to the 5th respondent-Gram Panchayat, by the public at large.
Public streets and roads vest in the State/local body, and the State/local body holds them as a trustee on behalf of the public. (Dr. Nitin G. Khot v. State Commandant, Belgaum ; Sujay Advertising v Union of India ). As public streets vest in the State/local body, every member of the public has a right to use the same subject to the rights of others and the law regulating traffic etc. (Dr. Nitin G. Khot1; Saghir Ahmad v State of Uttar Pradesh ). There is a duty cast upon the State/local bodies to maintain roads in a proper condition. Whenever it is brought to their notice that there are encroachments on public roads and streets, it is their duty to act and take steps to remove the same. (D. Mallikarjuna Rao v. Member Secretary ; Natarajan O.N. v. The Municipal Council, Turaiyur ; Janarthanam, KVK v. State of Tamil Nadu ; The Commissioner, Panruti Municipality, Panruti v. Sri Kannika Parameswari Amman Temple ; Damodara Naidu v. Thirupurasundari Ammal ; and Govinda Asari v. The Kancheepuram Municipality, rep. its Commissioner ). If any obstruction is caused over the roads/road margin, the person entitled to have such access can enforce that right. (K.V.K. Janardhanam KVK6; Bharathamatha Desiya Sangam Madha-varam v. Roja Sundaram ).
Public roads are public property, and these roads are constructed for a public purpose. It is only for the welfare and betterment of the public, that all such developmental activities are undertaken. People should be allowed to enjoy the benefits of such development. Public roads can be used only for the travelling needs of the public. It cannot be converted for other collateral purposes. (P.N. Srinivasan v. The State of Tamil Nadu ). If, in respect of any street, public has a right of way, it is a public street. The public way or public road or public street is a way over which their exists a public right of passage. (Mishrimal Jethmal Oswal v. Municipal Council of Lonavala ). The vesting of the public street in a local body is only for the purpose of maintaining it properly as a public street. (Govinda Asari9). Vesting of the public street in it, does not confer any power even on the local body to treat it as its private property, nor does it imply a power to cause obstruction to the use of the public street. (Govinda Asari9).
While admitting that compound walls were constructed, and gates were erected over these roads, Sri C.V. Mohan Reddy, Learned Senior Counsel appearing on behalf of the 7th respondent, would submit that, since some of these gates have an inner-gate through which pedestrians and two wheelers can pass, access to the general public cannot be said to have been restricted. As the subject roads belong to the 5th respondent-gram panchayat, and not to the 7th respondent, the latter has no right whatsoever to construct compound walls over public roads and erect gates thereupon. Even according to the 7th respondent, four wheelers cannot enter the lay out as the gates are under lock and key. Ingress and eggress into this area is partly prohibited (because of compound walls having been constructed over 14 of the layout roads), and partly restricted (because of erection of gates over the remaining six layout roads), by the 7th respondent; and the general public have thereby been denied free access thereto.
As public roads and open spaces, in sanctioned lay outs belong to the Gram Panchayat under Section 53(1) of the 1994 Act, and as the 7th respondent, in compliance with the law, has gifted the public roads and open spaces to the 5th respondent-Gram Panchayat, their action, in constructing compound walls and erecting gates, over these roads in the sanctioned lay out is evidently illegal. The justification put forth by Sri C.V.Mohan Reddy, Learned Senior Counsel, is that the 7th respondent has been paying huge amounts as house-tax and profession tax; and the only gate on the southern side, and one of the two gates on the northern side, were erected, as per the advice of the Police, as a measure of security.
The members of the 7th respondent are bound to pay house- tax and profession tax in accordance with the provisions of the 1994 Act. Payment of such taxes does not confer any right upon them to block roads permanently by constructing compound walls thereupon, or restricting ingress and eggress of the general public, by erecting gates on the public roads, and in keeping them under lock and key. Neither has any documentary evidence been placed before us to show that the gates were erected on the advice of the police officials nor has any provision of law been brought to our notice which confers any power on the police officials to permit the 7th respondent to restrict access, to the general public, over these public roads which belong to the Gram Panchayat. Closure of public roads, on walls being constructed or gates erected across them, by any individual or group of persons, under pre-conceived threat perceptions, would not only violate the law (in the present case Sections 53, 98 and 101 of the 1994 Act and Section 114(1) of the 2014 Act), but would also throw traffic in the area completely out of gear, and result in needless and avoidable traffic congestion in other areas.
The case of the 4th respondent, as is evident from their counter-affidavit, is that, while the roads were gifted to the 5th respondent-Gram Panchayat vide registered gift deed No.1555 of 2011, the open spaces were gifted to the 5th respondent-gram panchayat vide registered gift deed No.1019 of 2011; the 4th respondent had informed the Panchayat Secretary on 15.02.2016 to remove the compound wall which was obstructing entry to the lay out; the 4th respondent had also requested the District Panchayat Officer, vide letter dated 04.07.2016, to direct the Panchayat Secretary to take immediate action for removal of the compound wall (which was obstructing public access to the roads), as also the structures constructed by the society in the lay out public open space; and a show-cause notice was issued, under Section 115(1) of the 2014 Act, on 19.05.2017 calling upon the owners of the shops in the 7th respondent layout to show cause why the unauthorised constructions should not be removed.
While the 4th respondent has issued notices, and has advised the Gram Panchayat, it is evident that the 5th respondent-Gram Panchayat has not taken any action to have the illegal and unauthorised construction, made by the 7th respondent over public roads and open spaces, removed in accordance with law. As construction of compound walls and erection of gates over public roads, which belong to the Gram Panchayat, is illegal, the 5th respondent-Gram Panchayat ought to have taken steps to have the compound walls demolished, and the gates removed, as they prevent/restrict access to the general public to the use of these roads, and to put the public spaces to use, in accordance with law.
While the action of the 7th respondent is undoubtedly illegal, Sri C.V. Mohan Reddy, Learned Senior Counsel appearing on behalf of the 7th respondent, has put the bona-fides of the petitioner in issue. It is contended by the Learned Senior Counsel that the petitioner is the brother-in-law of one Sri A.V.Krishna Rao, who is seeking to construct a building in the area adjacent to the sanctioned layout, for which one of the means of access is through the roads in the subject layout. While the petitioner has disclosed all these facts, in the affidavit filed by him in support of the Writ Petition, it is only the complaint given by the 7th respondent, against them to the Bhavanipuram Police Station registered as Crime No.160 of 2016 on 21.03.2016, which has not been referred to therein. Sri V.Srinivasa Rao, Learned Counsel for the petitioner, would submit that the petitioner, in the reply affidavit filed by him, has stated that, by over-sight, this fact was not stated in the writ affidavit. In his reply affidavit, the petitioner has tendered his apology for his failure to do so and has also pointed out that, even in the complaint, the allegation was that the Vice-President of the Gram Panchayat had got a part of the compound wall demolished, and the petitioner was standing near the same; and not that the petitioner had earlier demolished a part of the compound wall.
Grant of relief under Article 226 of the Constitution is based on the existence of a right in favour of the person invoking the jurisdiction of the High Court. The exception to the general rule is in cases where the writ applied for is a writ of habeas corpus or a quo warranto or a writ filed in public interest, (Vinoy Kumar v. State of UP ), where the rule of locus standi is relaxed. (Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed ; Ahmed Ehhtesham Kawkab v. Government of India ). As this Writ Petition has been filed in public interest, alleging violation of the provisions of the 1994 Act and the 2014 Act by the 7th respondent, the question, whether any right of the petitioner has been violated justifying his invoking the jurisdiction of this Court, is wholly immaterial. Even otherwise, the petitioner, like any other member of the general public, has a right to use public roads and his right, along with all those who live in surrounding areas, to use the public roads, in the sanctioned lay out, has been denied as a result of the 7th respondent having constructed compound walls over 14 of the roads, and in erecting gates over six others.
It is no doubt true that Sri A.V. Krishna Rao has invoked the jurisdiction of this Court seeking removal of the compound wall over one of the roads in the lay out which restricts access to his site from the lay out road, and the said Writ Petitions are pending. As public roads vest in local bodies (in the present case, the 5th respondent-gram panchayat) no person, be it the petitioner or the 7th respondent or Sri A.V. Krishna Rao, can claim, as of right, that they can close public roads, constructing walls across them or erecting gates thereupon, as that would prevent/restrict public access to these public roads. We see no reason to deny the petitioner, the relief sought for in this Writ Petition filed in Public Interest, merely because the Writ Petitions filed by Sri A. Krishna Rao and the 7th respondent are pending on the file of this Court.
The petitioner claims that he was born and brought up in the very same village, around 100 families of his close relatives are living in the village, he is a ward member of the locality, and is, therefore, entitled to expouse the cause of the general public. It is unnecessary for us to examine these contentions, or even the bonafides of the petitioner, as if any other member of the public, to whom the oblique motive and conduct alleged against the petitioner in the present case, cannot be attributed, could file such a writ petition for the same relief, this disability on the ground of oblique motive and conduct would not attach to him. This being so, the relief claimed by the petitioner in the writ petition being in the nature of a class action, without seeking any relief personal to him, ought not to be dismissed merely on this ground, since this is a matter of public concern and relates to the good governance of the State/local body itself. (Dr. Kashinath G.Jalmi v. Speaker ; Ahmed Ehhtesham Kawkab15; M/s. Campaign for Housing and Tenural Rights (CHATRI) v. Government of Andhra Pradesh ). We see no reason, therefore, to non-suit the petitioner on this ground or to refuse to grant him the relief sought for in the Writ Petition, as it is evident that the 7th respondent had illegally and unauthorisedly constructed compound walls over 14 of the roads in the subject lay out, and has erected gates over six others, prohibiting/restricting access, to the general public, to the use of these public roads.
The 7th respondent shall, within four weeks from today, remove the encroachments on the public roads and the open spaces in the sanctioned lay out, which they had earlier gifted in favour of the 5th respondent gram panchayat. In case the 7th respondent fails to do so, both the 5th respondent Gram Panchayat and the 4th respondent shall have the compound walls raised and the gates erected, over these public roads in the sanctioned layout removed, and the construction raised in open spaces demolished, within four weeks thereafter.
The Writ Petition is, accordingly, disposed of. Miscellaneous Petitions pending, if any, shall also stand disposed. There shall be no order as to costs.
_________________________________ RAMESH RANGANATHAN, ACJ _______________________________ GUDISEVA SHYAM PRASAD, J.
Date: 28-02-2018.